Exhibit 4.7.2
DECLARATION OF TRUST, dated as of November 6, 2002 between
ConocoPhillips, a Delaware corporation, as Sponsor (the "Sponsor"), and The Bank
of New York, as trustee (the "Property Trustee"), The Bank of New York
(Delaware), as trustee (the "Delaware Trustee"), and Xxxx X. Xxxxxx, as trustee
(collectively with the Property Trustee and the Delaware Trustee, the
"Trustees"). The Sponsor and the Trustees hereby agree as follows:
1. The Delaware statutory trust created hereby shall be known as
"ConocoPhillips Trust II" (the "Trust"), in which name the Trustees, or the
Sponsor to the extent provided herein, may conduct the business of the Trust,
make and execute contracts, and xxx and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to
the Trust the sum of $10. The Trust hereby acknowledges receipt of such amount
from the Sponsor, which amount shall constitute the initial trust estate. It is
the intention of the parties hereto that the Trust created hereby constitute a
statutory trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code
Section 3801 et seq. (the "Statutory Trust Act"), and that this document
constitutes the governing instrument of the Trust. The Trustees are hereby
authorized and directed to execute and file a certificate of trust with the
Secretary of State of the State of Delaware in accordance with the provisions of
the Statutory Trust Act. The Trust is hereby established by the Sponsor and the
Trustees for the purposes of (i) issuing preferred securities representing
undivided beneficial interests in the assets of the Trust ("Preferred
Securities") in exchange for cash and investing the proceeds thereof in debt
securities of the Sponsor, (ii) issuing and selling common securities
representing undivided beneficial interests in the assets of the Trust ("Common
Securities") to the Sponsor or an affiliate of the Sponsor in exchange for cash
and investing the proceeds thereof in additional debt securities of the Sponsor
and (iii) engaging in such other activities as are necessary or incidental
thereto.
3. The Sponsor and the Trustees will enter into an Amended and
Restated Declaration of Trust, satisfactory to each such party, to provide for
the contemplated operation of the Trust created hereby and the issuance of the
Preferred Securities and Common Securities referred to therein. Prior to the
execution and delivery of such Amended and Restated Declaration of Trust, the
Trustees shall not have any duty or obligation hereunder or with respect to the
trust estate, except as otherwise required by applicable law or as may be
necessary to obtain prior to such execution and delivery any licenses, consents
or approvals required by applicable law or otherwise.
4. The Sponsor, as the sponsor of the Trust, is hereby authorized
(i) to prepare and file with the Securities and Exchange Commission (the
"Commission") and execute, in each case on behalf of the Trust, (a) a
Registration Statement on Form S-3 or on such other form or forms as may be
appropriate, including without limitation any registration statement of the type
contemplated by Rule 462(b) of the Securities Act of 1933, as amended (the
"Securities Act") (any such registration statement, whether on Form S-3, another
form or under Rule 462(b) being referred to herein as the "Securities Act
Registration Statement"), including any pre-effective or post-effective
amendments to such Registration Statement (including any preliminary prospectus,
prospectus or prospectus supplement, and the exhibits thereto), relating to the
registration under the Securities Act of the Preferred Securities and certain
other securities
of the Sponsor and (b) if the Sponsor shall deem it desirable, a Registration
Statement on Form 8-A (the "Exchange Act Registration Statement"), including all
pre-effective and post-effective amendments thereto, relating to the
registration of the Preferred Securities under Section 12 of the Securities
Exchange Act of 1934, as amended; (ii) if the Sponsor shall deem it desirable,
to prepare and file with the New York Stock Exchange, Inc. or any other
automated quotation system, exchange or over-the-counter market (each, an
"Exchange") and execute on behalf of the Trust a listing application or
applications and all other applications, statements, certificates, agreements
and other instruments as shall be necessary, appropriate or desirable to cause
the Preferred Securities to be listed on any Exchange; (iii) to prepare and file
and execute on behalf of the Trust such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and other
papers and documents as the Sponsor, on behalf of the Trust, may deem necessary,
appropriate or desirable to register the Preferred Securities under the
securities or "Blue Sky" laws of such jurisdictions as the Sponsor, on behalf of
the Trust, may deem necessary, appropriate or desirable; (iv) to negotiate the
terms of and execute, or to cause any natural person appointed pursuant to
Section 6 hereof, in his or her capacity as trustee of the Trust (a "Regular
Trustee"), to execute, on behalf of the Trust an underwriting or other purchase
agreement among the Trust, the Sponsor and any underwriter(s), dealer(s) or
agent(s) relating to the Preferred Securities, as the Sponsor, on behalf of the
Trust, may deem necessary, appropriate or desirable; and (v) to execute and
deliver, or to cause the Regular Trustee to execute and deliver, on behalf of
the Trust letters or documents to, or instruments for filing with, a depositary
relating to the Preferred Securities. In the event that any filing referred to
in clauses (i)-(iii) above is required by the rules and regulations of the
Commission, any Exchange, the National Association of Securities Dealers, Inc.
or any state or foreign securities or blue sky laws, to be executed on behalf of
the Trust by a Trustee, a Regular Trustee, in his or her capacity as Trustee of
the Trust, and the Sponsor are hereby authorized to join in any such filing and
to execute on behalf of the Trust any and all of the foregoing.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Sponsor that may increase or
decrease the number of Trustees; provided, however, that the number of Trustees
shall in no event be less than three (3); and provided, further that to the
extent required by the Statutory Trust Act, one Trustee shall either be a
natural person who is a resident of the State of Delaware or, if not a natural
person, an entity that has its principal place of business in the State of
Delaware and meets other requirements imposed by applicable law. Subject to the
foregoing, the Sponsor is entitled to appoint or remove without cause any
Trustee at any time. Any Trustee may resign upon 30 days' prior written notice
to the Sponsor.
7. The Trust may be dissolved and terminated at the election of the
Sponsor.
8. To the fullest extent permitted by applicable law, the Sponsor
shall indemnify and hold harmless any Trustee, any affiliate of any Trustee, any
paying agent, any officer, director, shareholder, member, partner or employee of
any Trustee or paying agent, or any employee or agent of the Trust or of any of
its affiliates, including but not limited to any
2
officer or director of the Sponsor (an "Indemnified Person") from and against
any loss, liability, expense, damage or claim incurred by such Indemnified
Person arising out of or in connection with the acceptance or administration of
the trust or trusts hereunder or by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of
authority conferred on such Indemnified Person by this Declaration of Trust,
except that no Indemnified Person shall be entitled to be indemnified in respect
of any loss, liability, expense, damage or claim incurred by such Indemnified
Person by reason of gross negligence (or, in the case of the Property Trustee,
negligence) or willful misconduct with respect to such acts or omissions.
9. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
3
IN WITNESS WHEREOF, the parties hereto have caused this Declaration
of Trust to be duly executed as of the day and year first above written.
CONOCOPHILLIPS,
as Sponsor
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Xxxx X. Xxxxxx
Vice President and Treasurer
THE BANK OF NEW YORK,
as Property Trustee
By: /s/ Van X. Xxxxx
--------------------------------------
Van X. Xxxxx
Vice President
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Xxxxxxx X. Xxxxx
Senior Vice President
XXXX X. XXXXXX,
as Regular Trustee
/s/ Xxxx X. Xxxxxx
--------------------------------------
